All the strange connections and the classics

I admit it. I frequently see strange connections in things that most people would find not connected or only vaguely connected. But there you are. At this blog, you get what you pay for.

Michael K. Ausbrook practices law in Bloomington, Indiana. He does a lot of state and federal post-conviction litigation (federal habeas cases attacking state convictions). He and I share a connection in that I handle a lot of those cases as a judge. Additionally, we are both enamored with the late Loren Eiseley.

Born in Lincoln, Nebraska, and first educated at the University of Nebraska where he received degrees in both English and Anthropology, Loren Eiseley (September 3, 1907 – July 9, 1977) was a world-renowned anthropologist and a writer of unsurpassed talent. He taught and published essays, poetry and books from the 1940s through the 1970s.

During this period he received more than 36 honorary degrees and was a fellow of many distinguished professional societies including the Association for the Advancement of Science, the National Academy of Sciences, the National Institute of Arts and Letters and the American Philosophical Society. At his death, he was the Benjamin Franklin Professor of Anthropology and History of Science at the University of Pennsylvania.

Publishers Weekly referred to him as “the modern Thoreau.” In the broad scope of his many writings he reflected upon such diverse topics as the mind of Sir Francis Bacon, the prehistoric origins of man, and the contributions of Charles Darwin. For more, visit the Loren Eiseley Society here.*

After the post on Richard Arnold recently, Michael wrote me an e-mail. He has allowed me to reprint a portion of it. That portion reads as follows:

As I mentioned in an earlier email, my father, also an Arkansan, was in the same Harvard law school class.*

Your post caused me to go look up Judge Arnold on the web again; It was interesting to see that he went to Exeter, taking Classics, and then majored in Latin and Greek at Yale. I went to Exeter, took Latin and Greek, and then majored in Classics at the University of Pennsylvania. (Georg Knauer, one of the great Vergil and Homer scholars of the 20th century, had just arrived there from Berlin, which was some consolation for Loren Eiseley’s withdrawal from the field because of illness just as I got to the U. of P.) It occurs to me that I might be part of the last generation for which a so-called classical education was not just plain strange.

Apropos of nothing, except maybe Exeter, I’ll share with you the fun fact about the one person, were you to have been a President of the United States, you would not have wanted to be associated with in any way: Robert Lincoln, who was sent off to Exeter when he wasn’t quite ready for Harvard. He was, obviously, Abraham Lincoln’s son; he was Garfield’s Secretary of War; and he was standing feet from McKinley when McKinley was shot.

(Italics supplied by Kopf.)

Don’t you see? In some strange way, and if only for a moment, the love of the classics brought Richard Arnold, Michael’s father, Michael and me (and perhaps even Robert Lincoln) together. Eiseley would not have been surprised.


*Michael didn’t tell me, but his Dad was a very distinguished lawyer.

**Read “The Slit” from his collection of essays entitled the The Immense Journey. That chapter is the introduction to the book, and is prompted by Eiseley peering into the skull of a long-lost rodent in an exposed crevice in the High Plains. You can read “The Slit” for free here (click “look inside” on the upper left and then scroll down). You will be hooked. You can buy the little book for $10.00. It will be the best investment of your life.

Update, 11:00 am Saturday, May 24, 2014:  I forgot another connection. Michael is a 1993 Magna Cum Laude graduate of the Indiana Law school and was elected to Order of the Coif. Richard Arnold’s brother, Morris (Buzz), who served with Richard on the Court of Appeals, was Dean of the Indiana law school when he was appointed a federal district judge.

Roscoe and Richard and Circles and Ovals

“Some shapes have no corners and therefore no distinguishable sides. Circles and ovals are examples of geometric shapes that have no distinguishable sides.” Michael E. Carpenter, Describe the Properties of Geometric Shapes (scroll down).

Earlier, I posted a photo of Roscoe Pound’s circular desk at Harvard. Today, I post a picture of Richard Arnold’s oval desk in Little Rock. These were two supremely gifted men of the law who understood that having “no distinguishable sides” was not a bad thing, but rather a beautiful thing.

This is copy of a photo showing Judge Richard Arnold's oval desk was supplied to me by our Circuit Librarian in jpg format. From the properties menu, it appears that the photo was taken on Wednesday, September 29, 2004. The copy appears to have been made on that same date.  Judge Arnold died on September 23, 2004 as a consequence of an infection he suffered while being treated for Non-Hodgkin's Lymphoma (of the indolent variety) at the Mayo Clinic in Rochester, MN.  He had suffered from, and had been treated for, the disease since 1975.

This copy of a photo showing Judge Richard Arnold’s oval desk was kindly supplied by our Circuit Librarian, the marvelous Ann Fessenden. The original photo was taken on Wednesday, September 29, 2004. Judge Richard Arnold died on September 23, 2004 as a consequence of an infection he suffered while being treated for Non-Hodgkin’s Lymphoma (of the indolent type) at the Mayo Clinic in Rochester, MN. He had suffered from, and had been treated for, the disease since 1975. Upon Richard’s death, his brilliant brother (Morris (Buzz) Arnold), a Republican at the time of his appointment as an Eighth Circuit Judge, said of Richard, a Democrat at the time of his appointment as an Eighth Circuit Judge,*He was second to none in the country. I mean that literally.” According to Tony Mauro, who has covered the Supreme Court for over 30 years: At the time of Richard’s death, eight Supreme Court Justices published tributes to his fairness, judicial restraint, and eloquent and influential judicial opinions.  It is hard to imagine, these days, eight Supreme Court Justices agreeing on the time of day. But, Richard’s unique spirit and remarkable gifts brought people together. He was, as Professor Polly Price of Emory said, like Learned Hand, “perhaps the best judge never to serve on the Supreme Court.”


*Clarification, Friday, May 23, 2014 at 9:53 PM: Richard made it clear when he was first appointed as a federal district judge (barely a year later he would become a Circuit judge) that once appointed to the bench he was a judge and not a Democrat who was a judge. Before he too became a Circuit judge, the same sentiment was true for Buzz once becoming a district judge. He was a judge and not a Republican judge.

Bad news for the Justices (and the rest of us)

As I have written before, I don’t like the idea of “term limiting” the Justices. I have even provided a “top ten” list of the ways to address the polarization problem without term limits. Now, with a tip of the hat to Howard Bashman, I see that Norm Ornstein, writing in the Atlantic, has concluded that: “The best solution to the increasingly politicized and unseasoned Court is to limit justices to 18-year terms.” Mr. Ornstein’s opinions matter in Washington.

While it is cheeky almost beyond imagining, I remind the Chief Justice that he once told Jeffrey Rosen, writing in the Atlantic, about the importance of the Court speaking with one voice. Rosen provided this cutline in January of 2007: “In an exclusive interview, Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas.

He added that:

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

Roberts suggested that the temperament of a chief justice can be as important as judicial philosophy in determining his success or failure.  . . . .

I will be dead and buried before term limits, once imposed upon the Justices, “trickle down” to lowly Article III district judges, but it becomes inevitable once imposed at the top. Kopf’s cry to the Gods (and the Chief): Don’t make me roll over in my grave.


Raining in Lincoln and Hong Kong too!

It rained hard last night in our little corner of the world. The rain continues. It is dark and cloudy and stormy. We see Joan’s oncologist today.  He works in the same clinic as my oncologist. Old home week. Since the sigmodie-thingie-scope for Joan was good last week, we don’t anticipate problems. It was raining in Hong Kong too where Lisa’s Ob/Gyn hangs out. The family went to find out what kind of baby was coming to China. Petra knows but is not telling. Daddy doesn’t want to know what kind just yet. Quiet. It’s a secret.


Without rain, what would happen to the river of life? Well, probably, I wouldn’t think to write trash like this. Oh, well.





Roscoe Pound and the circular desk

The great man, his books and his desk.

The great man, his books and his desk.

Roscoe Pound was a polymath. Because of his varied interest, he kept stacks of books out, ready for further consultation at a glance.

Because standard desks were inefficient for his needs, Pound commissioned the creation of a unique desk. It is a complete circle and the great man would stand (or maybe even sit) in the middle turning and turning and turning as his examined his array of source materials.

My new friend, Tyler Keyser promised to send me photos of the desk and related materials that may still be found at Harvard.  Tyler is as good as his word, and I happily share some of them now.

The desk as it exists today.

The desk as it exists today.

Thanks Tyler.


Lunch with Tyler Keyser

One of the gratifying things about this blog (in addition to pissing off . . .) is “meeting” with new and interesting people. I have come to consider a few of them dear friends, although we have never actually seen each other face to face.

Recently, I got an e-mail from Tyler Keyser, a portion of which reads like this: “I just graduated from Harvard Law School. Well, I’ve finished classes and exams, but they make us wait three weeks until they hand us our diplomas. You may recognize Harvard Law School as that other law school with a building named after Roscoe Pound.” (Italics by Tyler.)

The “other” reference was to a building named after Pound here at the University of Nebraska. Pound started at Nebraska earning a PhD in botany, a law degree and teaching at the Nebraska law school where he became the Dean. Of course, he moved on to Harvard and in 1916 became Dean of the Harvard Law School. The rest is history so they say.

I also learned that Tyler grew up in Nebraska and would be in Lincoln for a few days. I invited him to lunch with the law clerks and me on Monday. Turns out the Tyler grew up in Cambridge, Nebraska with a population of less than 1,100 people.  His dad was the superintendent of schools who has since moved to become superintendent of schools in Sutherland, Nebraska, with a population of 1,300 or so people.* His mom is a school teacher as well. Tyler, like Ryan Junck, is a small town boy with a brilliant mind. So, Tyler decided to go to a “big” college. He hit it out of the park at Hastings College in Hastings, Nebraska. “Nearly 1,200 students come to Hastings College from more than 20 U.S. states and eight countries around the world.” It is a liberal arts college located in the middle of Nebraska.

After Tyler graduated Hastings, he spent two years in New York City working for a large non-profit that helps poor people. He then applied to a variety of law schools, and was admitted to Harvard. He has a job after graduation. He will work for Ropes & Gray** in Boston starting out doing corporate work.

I predict Tyler will go along way. He is good-looking, brilliant, nice, humble, hard-working, and motivated to do good. He has an especially wry sense of humor. In short, Tyler’s mother and father should be very proud of him.

We had a very nice lunch. Tyler told us (somewhat shyly) about himself. Then, the law clerks each told him about their work and their backgrounds. The four lawyers I manage as law clerks range from about age 35 to about age 62. They have tons of experience. I asked those lawyers to give Tyler advice, and there was an interesting exchange. Tyler also listened in as we discussed cases. He did not seem too fazed by the jargon.

There was one weird thing that happened during the lunch. Tyler had bought Judge Urbom’s book. He asked me to sign the page where my photo appeared. I was flummoxed.  No one had ever asked me to sign a book before. So, without thinking too much (I do that frequently), and in my scrawled and childish handwriting using red ink, I wrote: “Good luck. Rich Kopf.”

Eloquent–not.  Here’s some more advice Tyler:  If you ever have to explain my note, say, “Kopf had gotten really senile by then.”

In summary, life takes us all through strange twists and turns. We cannot predict them and Tyler will find that out. But for me, I will always be glad that I bought Tyler a turkey sandwich one day in May, 2014.


*A  famous and horrible murder took place in Sutherland, Nebraska. On the evening of October 18, 1975, local police found the six members of the Henry Kellie family murdered in their home in Sutherland. Those murders were to result in a firestorm of national publicity and a criminal prosecution that later made important First Amendment law in the Supreme Court. See Nebraska Press Association v. Stuart427 U.S. 539 (1976) (To the extent that the trial judge’s order prohibited the reporting of evidence adduced at the open preliminary hearing held to determine whether the accused should be bound over for trial, it violated the settled principle that “there is nothing that proscribes the press from reporting events that transpire in the courtroom,” Sheppard v. Maxwell, 384 U. S. 333, 384 U. S. 362-363, and the portion of the order restraining publication of other facts “strongly implicative” of the accused is too vague and too broad to survive the scrutiny given to restraints on First Amendment rights.) I knew the prosecutor, Milton R. Larson, very well. Milt and I were good friends, we had commuted back and forth together about 50 miles each way to law school when our wives were teaching in Wilbur, Nebraska. Milt argued the case in the Supreme Court with the pro bono assistance of Erwin Nathaniel Griswold, who had served as Dean of the Harvard Law School and Solicitor General of the United States (1967–1973) under Presidents Lyndon B. Johnson and Richard M. Nixon. Griswold took the case because Fred W. Friendly, one of America’s greatest journalists, had befriended Milt while covering the national story. Friendly came to like and respect Milt (he was really a sweet guy), he knew Milt needed big time help, and Friendly was well acquainted with Griswold.  I also knew Judge Stuart very well since I practiced in his district. His son, a decorated Marine Corps Colonel, is now First Assistant United States Attorney for the District of Nebraska. I also had the privilege of debating a highly regarded editor (Gil Savery), who represented the Nebraska Press Association, before a large group of lawyers and press people at a Nebraska Bar Association meeting regarding whether Judge Stuart’s gag order, as modified by the Nebraska Supreme Court, was permissible. I thought it was (at least for the purposes of the debate). I argued that the defendant’s Sixth Amendment right to a fair trial trumped the interest of the press protected under the First Amendment inasmuch as the press was not precluded from attending and receiving the embargoed information (an alleged confession, for example). The early release of inadmissible evidence could effectively preclude a fair trial throughout the State of Nebraska given the national interest in the story. Furthermore, the press was not barred from getting the information, they were merely instructed to wait until inadmissible evidence could do no harm. By the way, the killer continues to be held in a psychiatric facility. A retrial (on grounds unrelated to the Nebraska Press Association case) was necessitated and change of venue was ordered sending the case some 200 miles to the east for trial in Lincoln. The Lincoln jury found that Erwin Charles Simants was insane.

**Tyler noted that Ropes & Gray has more lawyers than people who live in Cambridge, Nebraska where he grew up and about the same number of lawyers as the total student body at Hastings College.









Note to law students: No “trigger warnings” in Kopf’s court

Every law student should read and take to heart Scott Greenfield’s Trigger Warning: Special Little Snowflake Ahead (Update) at Simple Justice.  While the post is worth reading because it is hysterically funny, it makes an important point: narcissism doesn’t get you very far. Indeed, it causes adults to laugh out loud.

By the way, there are no “trigger warnings” in my courtroom, just a mean ass guy who doesn’t spend a lot time worrying about your feelings. Be damn sure you grow up before you begin practicing law. That’s legal realism.


Michael J. McShane, United States District Judge, and a beautiful piece of prose

Jeffrey Kiok, a J.D. Candidate at Boston University School of Law, sent me a note. He drew my attention to the concluding part of Judge McShane’s opinion in the Oregon same-sex marriage case.  Jeffrey has my thanks.

The judge concludes his opinion this way:

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and
service to the greater community.
Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.

(Italics supplied by Kopf.)

What a stunning and beautiful piece of prose that obviously came from Judge McShane’s soul. I wish I could write like the judge.* Don’t we all.


*I express no opinion on the merits. A similar case could easily come before me.  If it did, some folks might be surprised by my views. Others would say I told you so. In any event, the expression of those views is premature.  I will wait until I have an actual case and controversy on this subject, if I ever do, to tell you what I really think.

Behind-the-scenes: Cases we like and loathe

Lawyer Nick Purifoy, who handles social security appeals and is located in Kansas City but who is admitted in our court and several other federal courts, asked an interesting question recently. He asked: “My colleagues and I are curious as to which kinds of cases you and your staff enjoy working on. As with any job, I imagine there are cases that you find pleasure in deciding. In contrast, there have to be certain types of cases that are a slog to work on.”  I set out to answer that question yesterday by polling my four law clerks.*

So, I am prepared to answer Nick’s question.  I will break the answer down into parts.  I will answer for myself and then the clerks.


Let’s start with cases resolved by trial, and then let’s break it down into jury and non-jury. Jim, one of my career clerks, works on jury cases with me. That is, he takes the first crack at jury instructions. Jan, my other career clerk, works on non-jury cases and assists in writing the findings of fact and conclusions of law. All the clerks handle motions. (If a clerk takes a motion, I expect it to come back to me once and in perfect and final form–I will either accept or reject it. My only instruction to the clerks is to follow the precedents and be intellectually honest.)

Jury trials:

I would rather try a criminal case to a jury than a civil case.  Why? I suppose because I have much more experience trying criminal cases. We try a lot of them. Our court ranks near the top among the 94 district courts for the number of federal criminal cases per judge (as of September 30, 2013).  We rank 8th in the nation and 2nd in the Circuit for criminal cases per judge. 

I do not like trying patent cases to juries or contract cases to juries.  This is because the instructional issues in these cases are complex.  In patent cases, I have found the model jury instructions to be incomprehensible and I don’t try many patent cases to a jury so the effort is much greater than normal. In contract cases, since we are typically applying the law of a state, there is inherent uncertainty.  But the most important problem for me is figuring out what part of a contract case is for the jury and what part of the case is for the judge. Tell me, in practical terms, what the difference is between “construction” of a contract and “interpretation” of a contract?

Non-jury cases:

I love trying non-jury cases that raise complex scientific or other technical questions like the federal partial-birth abortion case that ended in the Supreme Court. I don’t like non-jury cases where I must determine credibility of only one witness over another.  As I have said before, I am not good at making credibility determinations.


Once in a while, I will take a motion or other non-trial matter (like an administrative appeal) from one of the clerks and write the entire thing myself. This helps me manage the clerks, and I enjoy writing and research. Sorry, Nick, but Social Security disability appeals are the pits. See 42 U.S. Code § 405(g). The law is arcane and the facts (a foot or more of administrative records containing all sorts of medical information) are voluminous and must be read carefully because the poor Administrative Law Judges (ALJs) (good men and women all) are so overworked.** See The trouble with Social Security disability appeals, Hercules and the umpire (May 10, 2013).  On the other hand, I like doing motions under 28 U.S.C. § 2255 attacking federal criminal convictions and sentences. Since I handled the underlying criminal case, I am familiar with the facts and issues and can normally resolve the matter fairly quickly and without a lot of wasted effort. That’s why I almost never assign a law clerk to handle a section 2255 motion.

Law Clerks:


Once again, Nick I am sorry. There was universal agreement among the clerks that Social Security appeals are awful. While they are certainly important to the claimant, they eat up a disproportionate amount of time. Nonetheless, because the ALJs are under the gun to get out decisions, any Social Security appeal must be given a hard look. On the pro se side, non-prisoner employment cases are trouble. The law on employment cases is squirrely enough without having the complicating factor of a plaintiff who is not represented by counsel.

There was also universal agreement about one other thing. The clerks detest civil cases involving summary judgment motions where the lawyers fail to strictly follow our local rule of practice about how to brief summary judgment motions. See NECivR 56.1. Raging anger best describes the feelings of the clerks on this issue.


In general, all the clerks liked intellectually challenging cases raising novel issues where there were good lawyers on both sides. On the pro se side, state habeas cases were liked because the law (despite academic arguments to the contrary) is well-developed and over the years the Nebraska Attorney General has bought into providing a suitable record and complying with our briefing requirements and that allows us to get at the issues in an efficient manner while providing a fair and thorough review for the prisoner.


Nick, thanks for asking the question. It was a good exercise for the clerks and me to think through the answers.


*In addition to my two “chambers” clerks, who are career clerks and who have been with me for decades, I also supervise the pro se staff. They are very experienced lawyers as well. My career clerks work for me alone, while the pro se staff does works for all the Article III judges in the district. Everything the pro se staff works on is reviewed by me first and then it goes to the assigned district judge. If one of our judges does not like the proposed order, that information is communicated to me rather than the pro se staff and the pro se staff and I rework it. This provides a consistent and efficient work flow on a docket this is particularly challenging because we are dealing with non-lawyers.  Right now, the pro se staff handles about 180 cases per year.

**Incidentally, unlike a lot of federal courts, we do not dump Social Security appeals on our Magistrate Judges. Each Article III judge does his or her own Social Security appeals. (We deserve a medal!) Long ago, when I was served as a magistrate judge (MJ) in Omaha, I did Social Security appeals because each district judges had a caseload approaching six hundred. Given the press of my regular MJ duties (I was the only MJ in Omaha), and the fact that I had only one law clerk, the extra work really slowed me down.

Cancer and commitment

The garden post that I just put up is not complete. I just realized that as I went out to the garage to smoke my pipe.

Our old pickup is filled to the brim with all manner of sticks, cuttings, stalks, and such that Joan (JKK) pulled from the garden and loaded into the pickup for an eventual trip to the compost pile at the dump. She did all of that without complaint or help from me or anyone else.

Joan’s commitment to her garden is not to be believed. Her labor is like that of a farm worker. All by hand. Stoop labor. She orders compost by the yard, has it dumped on our driveway and lugs it back to the garden with a 30-year old wheelbarrow. Then she spreads it shovel by shovel to enrich the soil that will produce her flowers.

Less than two years ago, cancer attacked Joan. It was colon/rectal cancer. The cure was chemotherapy and radiation of every organ below her pelvis. Both occurred at the same time. The skin on her abdomen turned red, burned and blistered. Internally, the radiation fried most of what it touched. Thankfully, and just several days ago, the doctors announced that the very nasty burn spot in her bowels had finally healed.

And still she gardens, filling up an old pickup all by herself and by hand. JKK is one tough old broad. Cancer and commitment.



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